Shapiro v. Newark Steel Drum Co.

Goldmann, Foley and Fulop. The opinion of the court was delivered by Foley, J.A.D.

Foley

[72 NJSuper Page 221] Petitioner appeals from a judgment of the County Court dismissing his workmen's compensation claim petition on the ground that the evidence failed to establish a causal connection between his condition of myocardial infarction and the duties of his employment. Petitioner had prevailed in the Workmen's Compensation Division.

The basic disagreement between the Division and the County Court involved a determination of whether the petitioner had established by a preponderance of the probabilities that his work duties caused or contributed to the onset of a coronary episode which admittedly he suffered on October 17, 1958. At the time of decision both tribunals were guided, of course, by the then existing state of the law. Since the entry of the county court judgment the Supreme Court in Dwyer v. Ford Motor Company , 36 N.J. 487 (1962) has refined the ratio decidendi of heart cases in respects which will hereinafter be noted and, thus, it is deemed advisable that the essential facts of the case be restated.

On October 17, 1958 petitioner reported for work at 7:00 A.M. He was employed as a fork lift operator. The vehicle he operated had a maximum load carrying capacity of five tons. It was gasoline powered and was manually operated by levers from a driver's seat. It was used to supply various machines with raw materials which were then fabricated; some of these materials were located in the main building of respondent's plant and some in a warehouse a short distance from the main building. The fork lift was parked overnight in the main building. At about 7:30 A.M. petitioner having received instructions from his foreman, prepared to drive to the warehouse where he was to pick up raw material and deliver it for fabrication. In order to do so it was necessary for him to open an overhead door of the main building, which he described as a wooden door 14 or 15 feet high. It was variously described by other witnesses as being 10 feet by 10 feet and 12 by 15 feet in size. It was the usual type of overhead door, equipped with a handle near the bottom and springs and counterbalances which aided in the lifting as the door moved along overhead runners. In describing the ordinary operation of the door petitioner said that one had to bend down and grasp the handle and "using every ounce of effort, you have to lift up as high as -- oh, approximately, your

shoulders or maybe just a little higher, take both hands and push for all you are worth to get it up to the top," and that to close the door one must "grasp a rope which is attached to the door and, again, exerting a great deal of effort pull the door back down."

The condition of the door was one of the few matters in factual dispute. The testimony of the petitioner and two coemployees called as witnesses by him, indicated that it had been struck on various occasions by trucks; that it was difficult to lift and at times would stick; that complaints of the condition of the door had been made. The persons to whom the complaints were made were not identified. On the other hand, respondent's plant superintendent and also its plant manager denied that complaints had ever been made to them, and said that the door at all times worked in a normal manner, and that no great effort was required to open it. The compensation judge resolved this issue in favor of the petitioner; the County Court judge found it unnecessary to decide it since, as we shall point out, he concluded in effect that the petitioner's description of the accident, which follows, was unworthy of belief. Having in mind the opportunity of the compensation judge to hear the witnesses and to observe their manner and demeanor in testifying, and the lengthy period over which this judge has been called upon to determine questions of credibility, we are satisfied that probability favors a finding that substantial effort was ordinarily involved in opening and closing this door, no matter what may have been its precise physical condition on the particular occasion under attention.

Petitioner testified that as he bent down and grasped the door he found it very hard to open; that it stuck "a great deal more" than usually and that as he was pulling on it he felt a burning sensation in his chest. He stopped momentarily and then proceeded to push the door up. As he did so the burning sensation increased in intensity. He climbed on the lift truck and drove out of the building, [72 NJSuper Page 224] but the burning "was so strong" he had to stop. He rested for a few seconds then went back and pulled the door down; the burning continued. He then drove to the warehouse which is about 100 yards away, where he opened another overhead door. This door worked "fairly easily," but as he bent down to grasp the handle to open it the burning became sharper. He then proceeded to lift a bundle of steel weighing approximately five tons; this was accomplished mechanically, and the only effort required of him was to operate the levers which control the lifting device. He backed the truck out of the building, got down from it, closed the door and drove back to the main building. There he again opened the large door, and this time the burning sensation was so severe that he "actually had to stand in the driveway a moment and wait." Presently, he delivered the steel to its destination, got down from the truck, and was instructed by his foreman to take another lift truck to pick up another load. He walked to this truck, put his hand on the steering wheel and his foot on the step, but the pain became so severe that it doubled him over. He waited for a "minute." He broke out in a sweat and went to the rest room where he sat on the toilet seat and bent over. After about five or ten minutes he went back to the shop to resume his work. He again felt the pain and returned to the rest room; the burning continued. It was very severe, finally he found some relief when he sat on the floor. Another employee came in and asked him, "what's the matter?" He said, "tell the boss I want to go home. I'm sick." His foreman came and asked him whether he would like to go to the doctor. He said, "yes" and was sent by automobile to the office of Dr. Dolsky, a company doctor. The burning sensation was "very, very sharp" by then, and he felt "a slight amount of pressure" in his chest. He told the doctor about the pain and indicated to him that it was at the pit of the sternum. The doctor said that he had a ruptured ulcer, and recommended that he enter Alexian Brothers Hospital in Elizabeth for

surgery. He requested that he be permitted to go to the Perth Amboy General Hospital so that he might have the benefit of his own doctor's services. This was agreeable to Dr. Dolsky and he was taken to Perth Amboy Hospital. There he was admitted by an intern and his physician Dr. Milton R. Bronstein was called. It was then 8:30 A.M.

Doctor Bronstein testified that when he arrived at the hospital petitioner was in the emergency room. He complained of pain in his chest and "was not too coherent to questioning," so the doctor did not question him "too much because of his pain." He was given an injection of demerol immediately to ease the pain. Dr. Bronstein then learned that Dr. Dolsky had made a diagnosis of ruptured duodenal ulcer. Dr. Bronstein found this diagnosis to be implausible and ordered an electrocardiogram. This revealed a coronary thrombosis -- in more technical terms, an "inferior myocardial infarction." Dr. Bronstein also said that petitioner gave him a history that after lifting a door at work he had a burning sensation followed by pain in his chest. Petitioner remained in the hospital until November 15, 1958 and returned to work on December 8, 1958.

There was evidence that in July 1957 petitioner had gone to Dr. Bronstein for treatment, complaining that he wasn't feeling well, was tired, had no "pep," and "had some abdominal pain." The doctor made a tentative diagnosis of "nervous stomach with the possibility of gall bladder disease or an ulcer." Antacid tablets were prescribed, and two weeks later he returned to the doctor. The pain had cleared up, but certain foods caused him "a little distress." Dr. Bronstein did not treat him thereafter until called to the hospital on October 17, 1958.

It seems quite clear that the petitioner made no mention whatever of straining at the overhead door or of any other work-connected incident or incidents, until he gave the history to Dr. Bronstein. Specifically, we find that no complaint was made concerning the door, nor ...

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